Capital One Bank v Hembrick

[*1] Capital One Bank v Hembrick 2007 NY Slip Op 52177(U) [17 Misc 3d 1128(A)] Decided on November 14, 2007 Civil Court, New York County Mendez, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 14, 2007
Civil Court, New York County

Capital One Bank, Plaintiff(s)/, Petitioner(s),

against

Michael Hembrick, Defendant(s)/, Respondent(s).



056562 CVN 2005



Attorneys for plaintiff:

Forster & Garbus, P.C.

By: Michael J. Florio

Michael Hembrick,

pro se

Manuel J. Mendez, J.

Defendant, Michael Hembrick, moves by Order to Show Cause to vacate the judgement and income execution and restore the terms of the stipulation of settlement entered into between the parties on May 23, 2007. He claims he was late sending the first month's payment under the stipulation of settlement, attempted to rectify the situation with the plaintiff's attorney, but instead a judgement was entered against him and he was forced to bring the Order to Show Cause currently before this Court.

Plaintiff opposes the motion and indicates in his papers that this is the second stipulation of settlement between the parties, there being one dated June 28, 2006, and that this is the second time defendant has defaulted. The first time defendant defaulted [*2]was under the stipulation of June 28, 2006. A judgment was obtained under that stipulation when defendant's check was returned by the bank for insufficient funds. Following vacatur of the judgment under that stipulation, on May 23, 2007 defendant entered into a second stipulation and immediately defaulted on his first payment. Plaintiff alleges that following the default, and in accordance with the stipulation's terms, defendant was given written notice of his default and allowed ten (10) days to cure before a judgement was entered August 1, 2007.

The written notice sent by the plaintiff to defendant states in part:

"You are in default of your stipulation of settlement. We intend to apply

For judgment unless you cure your default within the time agreed upon inthe stipulation of settlement by paying the current payment due." The defendant, indicates he has a reasonable excuse for his default on the stipulation, specifically he did not realize his time to cure was within ten days after the default, pursuant to the stipulation. He indicates he wishes to comply with the stipulation and had previously attempted to provide the plaintiff with the first payment which was untimely. The plaintiff rejected the payment because it had already entered judgment. The defendant is not indicating he wishes to vacate the stipulation, but asks that the judgment and income execution be vacated so that he may proceed under the terms of the agreement.Plaintiff has not annexed to it's opposition papers, the notice of default or proof that it was timely mailed. In addition, upon a search of the record by this Court, the notice dated July 4, 2007, filed in the Office of the Clerk of this Court does not indicate the defendant has ten (10) days to cure his default.

LAW

There is a strong public policy in this state towards having cases decided on their merits, however a party must first demonstrate it is entitled to vacate it's default. Navarro v. A. Trenkman Estate Inc., 279 AD2d 257, 719 NYS2d 34 [N.Y.A.D. 1st Dept., 2000].

Parties to stipulations freely agreed to, make the law for any legal proceeding to which they are parties, and as such the Courts are bound to enforce the stipulations. (see Hallock v. State of New York, 64 NY2d 224, at 230 [1984] and Nishman v. DeMarco, 76 AD2d 360, 430 NYS2d 339, (2nd Dept., 1980). However, where enforcement of a stipulation would be, "unjust, inequitable or permit the other party to gain an unfair advantage," the courts are permitted to afford relief. Bank of New York v. Robert Forlini, 220 AD2d 377 [NYAD 2nd Dept., 1995] cited by S & P Associates v. Keenan, 2002 WL 1880288, 2002 NY Slip Op. 50324(U) [NY App. Term 1st Dept. 2002] and Hunter Hale, L.L.C. v. Peguero, 10 Misc 3d 141(A), 814 NYS2d 561.) [*3]

The plaintiff is required to provide sufficient proof that the notice of default incorporating the terms of the stipulation was mailed to the defendant. Sold Gold Const. v. Robertson, 1 Misc 3d 136 (A), 781 NYS2d 628, 2003 WL 23214145, 2003 NY Slip Op. 51662(U), Electronic Servs. Intl. v. Silvers, 233 AD2d 361 [NYAD 2nd Dept. 1996] .

CONCLUSION

This Court finds the plaintiff has not sufficiently demonstrated the defendant was given proper notice of his default and an opportunity to cure. The notice fails to inform the defendant that he has ten (10) days to cure his default or a judgment would be entered against him. It would be an improper and unfair advantage to plaintiff if this Court were to allow the judgment to remain. This Court is bound to enforce the terms of the stipulation which calls for the plaintiff to provide the defendant with ten (10) days notice.

Accordingly, the defendant's motion by Order to Show Cause is granted. The default judgment and any restraining notices or income executions are hereby vacated. The parties are restored to the terms of the May 23, 2007 stipulation of settlement. Defendant shall mail a payment in the stipulated amount of $50.56 to the plaintiff within 20 days from the date of this order and shall make the subsequent monthly payments on the dates indicated in the stipulation and pursuant to the stipulated terms.

The foregoing shall constitute the Decision and Order of the Court.

Dated: November 14, 2007

Manuel J. Mendez

Judge, Civil Court